1. The applicant, who is a secretary of the Sindhu Education Society, Jaripatka, Nagpur, a registered minority educational institution having under its wing in all 12 educational institutions, was arrested on 12.11.2015 on the allegation that he amassed huge wealth disproportionate to his known sources of income during the check period of about 25 years i.e. between the year 1990 and 2015 and, in doing so, he with the help of his wife (accused No.2) resorted to various contraptions, like threatening his employees with termination of their services, if they failed to pay the monies demanded by him or failed to obey his orders, indulging in deceptions and cheating as well as preparing of false documents and using them as genuine and also misappropriating the money of the institution.
2. During the pendency of the investigation, the applicant moved a bail application before the Special Court (ACB) Nagpur, but it was rejected by it. The applicant also moved this Court under Section 439 of the Criminal Procedure Code by filing Criminal Application (BA) No.939/2015. This application was rejected by this Court on 22nd December, 2015. The matter was carried by the applicant to the Hon ble Apex Court by filing a Petition for Special Leave to Appeal (CRL) No.1640/2016. The S.L.P. was allowed to be withdrawn by the Hon ble Apex Court with liberty to the applicant to renew his request for grant of bail by filing an appropriate application after charge was framed. The Hon ble Supreme Court also observed that the trial Court, while framing the charge, shall proceed on its own merits uninfluenced by any of the observations made by the High Court. The order to this effect was passed by the Hon ble Supreme Court on 22.12.2015.
3. The charge came to be framed against this applicant and his wife accused No.2 by the Special Court (ACB) Nagpur on 26.7.2016. It was for offence punishable under Sections 13(2) read with Sections 13(1)(c), 13(1)(b) of the Prevention of Corruption Act, 1988 and also for offences punishable under Sections 120B, 420, 467, 468, 471, 168 and 201 of the Indian Penal Code. On the same day, the applicant filed an application before the Special Court (ACB) for grant of regular bail. The application, however, was rejected by the learned Special Judge by his order passed on 8th August, 2016. Thereafter, the applicant has filed this application under Section 439 of the Code of Criminal Procedure seeking his release on bail.
4. I have heard Shri Sunil Manohar, learned Senior Counsel with Shri A.A. Naik, learned Counsel for the applicant and Shri S.S.Doifode, learned Additional Public Prosecutor for the respondent/State assisted by Shri P.S. Verma, learned counsel for the intervenor. I have perused the paper book of this application, reply of the prosecution and the statements of relevant witnesses and relevant material produced before me by the learned Additional Public Prosecutor.
5. Shri Sunil Manohar, learned Senior Counsel, submits that there was an open enquiry during the period from 2012 to 2015 against this applicant in which, according to the prosecution, some incriminating material was found against the applicant because of which, the applicant was arrested. He further submits, this enquiry itself was conducted for some political reasons and though has been stated to be incriminating this applicant, is, in fact not so. He submits that now the investigation is over and even the charge has been framed and so there is no need for keeping the applicant in custody for any longer period of time and that if there is any apprehension about this applicant influencing prosecution witnesses, though unfounded, the applicant can be put to stringent conditions. He submits that the applicant is ready to stay outside the limits of city of Nagpur, if required by this Court. He also submits that the applicant has deep roots in society and when further detention of the applicant is not necessary denying him bail would only amount to his pretrial conviction.
6. Learned Senior Counsel further submits that the applicant has a right to fair trial which right the applicant may not be able to exercise effectively if he is not enlarged on bail as in that case the applicant would find it very difficult to explain to his advocates all those multifarious entries in the account books, various documents and written material. He points out that in this case there are 169 witnesses and voluminous documentary evidence. He submits that proper instructions on such prosecution evidence can be given only when the applicant is released on bail. He also submits that with such voluminous evidence to be adduced in the instant case, it is unlikely that the trial would be over within a reasonable period of time and whenever there is a possibility of the trial getting delayed, the law would require that the accused in such a case should not be made to suffer through his incarceration in jail. He places his reliance on the case of State of Kerala vs. Raneef, reported in (2011)1 SCC 784. He also relies upon the case of Sanjay Chandra vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40. Learned Senior Counsel further submits that out of 400 teachers, only 15 teachers are saying something against this applicant and there is absolutely no corroboration to their statements. He also submits that these witnesses have not given the details regarding the alleged illegal demands and threats. Therefore, according to him, to what extent the statements of such witnesses could be taken as prima facie correct itself is a question and if overall material is concerned, the question would have to be answered as against these witnesses. In other words, the applicant's case is that he has a good defence.
7. Learned Senior Counsel further submits that co-accused Smt. Veena has been already granted bail by the trial Court not on the ground that she is a woman but upon the consideration of the merits of her case. He submits that if one goes through the charge framed against this applicant as well as co-accused Smt. Veena one would find that all the accusations made therein are identical in respect of both of them and there is also not much of a difference between disproportionate assets attributed to both of them. He submits that while this applicant has been alleged to have amassed disproportionate wealth of about Rs.11/- crores, the value of the alleged disproportionate wealth of co-accused is of Rs.9/- crores. He, therefore, submits that now it is not possible to distinguish the case of this applicant from that of the co-accused and on the ground of parity also this applicant deserves to be released on bail.
8. Learned A.P.P. for the respondent/State submits that this application is not tenable for two reasons firstly, no ground of parity was raised before the trial Court and secondly, this Court has rejected the bail application of this applicant on 22nd December, 2015 considering all the grounds now being raised. He submits that merely because chargesheet has been filed, that by itself would not be a change in circumstance and the applicant has to independently demonstrate the same. He further submits that successive bail applications are not maintainable. In support, he places his reliance upon the cases of Kamlesh s/o. Dhirajlal Gandhi vs. State of Maharashtra and another, reported in 2007(1) Mh.L.J. (Cri.) 324 and State of Maharashtra vs. Captain Buddhikota Subha Rao, reported in AIR 1989 SC 2292.
9. Learned A.P.P. further submits that there is enough prima facie evidence available against this applicant and the statements of the witnesses would show that this applicant is the main accused who has indulged in several illegalities and going by the same there is a reasonable apprehension that if released on bail, he may influence the prosecution witnesses. He further submits that the crime involved here is of high economic magnitude and since it has been committed during the course of managing the affairs of an educational institution, it would certainly have an adverse impact on the educational system of the State as a whole. He further submits that these factors would disentitle the applicant from seeking his release on bail and they would also show that the case of the applicant is of a different nature than the case of the co-accused. Learned A.P.P. further submits that even by remaining in jail, the applicant can always issue proper instructions to his advocate and as such there is no impairment of his right to fair trial. As regards the correctness of the statements of the witnesses, learned A.P.P. submits, it is all a matter of merits, which cannot be considered at this stage.
10. In the case of Sanjay Chandra (supra), it has been held that the object of bail is to secure appearance of the accused person at his trial by reasonable amount of bail and the object of bail is neither punitive nor preventive. It is also held that deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon.
11. In the case of Dr. Vinod Bhandari vs. State of M.P., reported in 2015 ALL MR(Cri.) 1236 (S.C.) the Hon ble Apex Court held that as the offence involved a scam relating to admission of undeserving candidates in medical courses by corrupt means, it was an offence of a serious nature having such a high magnitude and potential as to adversely affect the society. It is further held that in such cases, there is also a potential of the trial being adversely influenced by grant of bail.
12. The principles of law laid down in the aforesaid cases are well settled and they would have to be borne in mind while appreciating the rival arguments.
13. As regards the preliminary objection of the prosecution, I would say with due respect, it deserves outright rejection. The Hon ble Apex Court by an order dated 22nd December, 2015 passed in Petition for Special Leave to Appeal No.1640/2016 allowed the applicant to withdraw the Special Leave Petition and granted him liberty to renew his request for grant of bail at appropriate stage, if charge was framed. It also observed that at the time of framing of the charge, the trial Court shall proceed on its own merits without being influenced by any of the observations made by the High Court. It is not in dispute that the request for grant of bail has been renewed by the applicant on the day on which the charge has been framed and it has been heard, considered and rejected on 8.8.2016, much after the charge came to be framed. So, when the request has been renewed in accordance with the liberty given by the Hon ble Apex Court and when the Hon ble Apex Court has also directed that while framing the charge, the trial Court shall not be influenced by the observations of the High Court made in the order dated 22nd December, 2015, nothing remains for me to clarify more. Consideration of a fresh bail application filed after framing of the charge, would have to be on its own merits uninfluenced by the observations of the High Court made in its previous order. Thus, I find no merit in the submissions of the learned A.P.P. that this application is not tenable and that there is no change in the circumstances. For these reasons, the cases of Kamlesh Dhirajlal Gandhi and Captain Buddhikota Subha Rao would be of no help to the prosecution.
14. About the merits of this application, I am of the opinion that perusal of the statements of the witnesses and the relevant material produced before me, leads me to believe that they do prima facie point towards involvement of the applicant in the offences alleged against him. There are some teachers and employees who have stated that this applicant used to demand monies from them by keeping them under constant threat of adverse action. They have also stated about how this applicant used to pressurize them into obeying his illegal orders. Going by the argument of the learned Senior Counsel, if there are such 15 witnesses, still, I may say, the number is not small. It may appear to be small in proportion to 400 teachers, who are said to be on the roll of applicant's institution, but from the crime magnitude perspective, the number is not at all meagre. Although, I do not wish to enter into the arena of consideration of evidence which in fact is a complete taboo in law while considering a bail application, I would only say for the purposes of this application that in law it is the quality and not the quantity of evidence which matters. Now, whether these witnesses are stating the truth or not, is something which is required to be considered at the time of appreciation of evidence and at this stage one has to go only by the prima facie worth of their statements. Considering it, I find that there is some material available on record which discloses prima facie involvement of the applicant in the offences alleged and charged against him. These offences are of serious nature and they prima facie indicate obtaining of huge sums of money in an illegal manner by putting the witnesses under pressure of threat and by adopting various other illegal means with the ultimate object of amassing huge wealth disproportionate to the known sources of income of the applicant. The figure of disproportionate assets ascribed to this applicant is of about Rs.11/- crores while the figure of disproportionate assets attributed to accused No.2 is of about Rs.9/- crores. Such money is by no means small or petty. It is something which prima facie shows that the offences are of high magnitude and since they have been committed during the course of managing the affairs of the educational institutions, they have adverse impact on the education system of the State as well. It needs no mentioning that the education system breeds next generation of the society, and healthier it is, healthier is the society. So, the trust of the society in the education system for bringing out a healthy next generation is also involved and it needs to be protected.
15. Learned Senior Counsel has also submitted that this applicant deserves to be given the benefit of principle of parity. With due respect, I would say, such parity between this applicant and co-accused Smt. Veena is not discernible from the record of the case. While, it cannot be disputed that identical charges have been framed against this applicant as well as Smt. Veena and the difference in the amounts of disproportionate assets ascribed to this applicant and to the co-accused is also not much, but, if we carefully consider the statements of relevant witnesses, we would find that there is a difference between the manner in which the accumulation of wealth has taken place at the hands of the applicant and that of the co-accused Smt. Veena. There is also available on record material prima facie showing that the amount of about Rs.2/- crores plus was diverted from the students computer fees and credited to the account of the applicant, where, as informed by the learned A.P.P., co-accused Smt. Veena is not the joint account holder along with the applicant. There is available on record further material prima facie disclosing misappropriation of the amount received by the institution under the Mid-Day Meal Scheme by producing false vouchers/bills by the applicant. Such material available on record presents the case of the applicant with different stock and value. Therefore, the benefit of principle of parity cannot be afforded to the applicant.
16. There is no doubt about the fact that the check period was of about 25 years, from 1990 to 2015, which in the opinion of learned senior counsel puts the enquiry itself under cloud. But for that, in my view, the Investigating Agency cannot be blamed. It appears that it received some complaints in this case quite late and considering the nature of allegations made, it was also essential for the Investigating Agency to trade cautiously in the case and as the events unfolded themselves, the period of enquiry, it appears, was required to be stretched to further length. In any case, such an argument having been related to defence of the applicant would have to be properly appreciated only when detailed evidence is available on record. For the reason, the argument that this case is fall out of political rivalry, would have to be considered only at the time of appreciation of evidence on merits of the case and not while deciding this application for grant of bail.
17. As regards the argument that incarceration of the applicant in jail is nothing but pretrial conviction, I beg to differ with the learned Senior Counsel. The object of bail is neither punitive nor preventive and its primary object is to secure the appearance of the accused person at the trial by reasonable amount of bail, as held in the case of Sanjay Chandra (supra). But, there are other parameters also which are required to be taken into consideration, while deciding a bail application. These other considerations are seriousness of the charge, the adverse impact on the society, undermining the trust of the people, possibility of the accused making himself unavailable for the trial, possibility of influencing the prosecution witnesses and so on and so forth. For these observations, I would like to draw support from the case of the Dr. Vinod Bhandari (supra). Now, if we consider the nature of material available against this applicant, we would find that there are several witnesses, who are the employees of this applicant and they are already saying, at least at this stage, that this applicant used to pressurize them into acceding to his various illegal demands. This would reasonably show that if released on bail, there is a possibility of the applicant influencing prosecution witnesses. Coupled with it, as said earlier, there is material showing that the applicant has prima facie committed the offences and that they are of high magnitude having their adverse impact on the education society in which people repose their trust for turning their children into responsible citizens. All these factors cumulatively outweigh the factors going in favour of the applicant, the factors of filing of the chargesheet, framing of the charge, the applicant having roots in the society and the applicant having a good defence.
18. As regards the question as to whether or not the applicant would be in a position to effectively instruct his advocate from jail, I must say, although it is more advantageous to instruct the Advocate properly when outside the jail, the advantage has to be calculated by balancing all the factors which go in favour of the applicant and which go against him, in the light of alternatives available to him. I have already found that factors for denial of bail to the applicant out number those which are in favour of his bail. Then, for effective imparting of instructions, an alternative is available. A facility is available for personal interview of the under trial prisoners in jails and if the applicant experiences any handicap in this regard, he is always at liberty to seek appropriate directions or permission from the trial Court and if he approaches the trial Court with such a prayer, I am sure the same would be considered sympathetically in order to uphold the applicant's right to fair trial. Therefore, the submission made in this behalf is rejected.
19. It has also been the submission of learned Senior Counsel that having regard to the voluminous evidence to be adduced in this case, there is no reasonable possibility of the trial of the applicant being held within a short period of time. In other words, according to him, there is most likely to be a delay in trial and, therefore, relying upon the case of State of Kerala vs. Raneef, (supra), the learned Senior Counsel submits that the applicant should be released on bail. At this stage, I do not think that this case would be of any help to the applicant for the reason that it is yet to be ascertained as to whether there is going to be any delay in trial or not. Charge has been framed only on 26.7.2016 and it would be premature for me to record any finding in this regard. The applicant, however, would be at liberty to raise such a plea before the trial Court at appropriate time.
20. In the circumstances, I find that this application deserves to be rejected.
21. The application stands rejected.